However the solution was not as obvious as it sounds

The " In practice however, the development of electronic mail and use copy-and - paste lead judges to find, sometimes divinatory way, what exactly this "common intention" at the time of the conclusion of the contract. This is the case for clauses which, although having been discussed or even accepted and listed in the "contract documents", were not repeated in the final contract.

July 11, 2006, the commercial Chamber of the Court of cassation issued a judgment which is usefully clarify the often uncertain fate of these clauses. It was, in this case, whether or not the arbitration clause (which returns any dispute before private arbitrators, and not before the judicial judge) was to apply. Because, in this case, the clause was included in the avant-contrat, but was not included in the final contract. The response was simple and straightforward: the judges of the High Court said that the arbitration clause should not be applied.

The judges will have to final documents more so the avant-contrat expressly provided that it would be cancelled and replaced by the final contract. However, the solution was not as obvious as it sounds. Indeed, the avant-contrat was signed while the final contract, he was not.

On the other hand, the said principle "jurisdiction-jurisdiction" gives the arbitrators themselves the faculty to say whether or not the clause that refers to is valid. Specifically, the straightforward application of this principle should therefore lead to a first arbitration procedure, in which the arbitrators have declined their jurisdiction (without also necessarily indicate which judge was, according to them, competent).

Limiting uncertainty

However, the principle "jurisdiction-jurisdiction" is not without limits. Parliament stated, in effect, could be rejected for manifest invalidity of the clause. In a judgment of 16 October 2001, the Court of cassation said that he could also be rejected for manifest inapplicability of the. This is the solution adopted in the judgment of 11 July 2006, where the clause provided in the avant-contrat, and not resumed in the final contract, was found to be patently inapplicable.

However, it should be noted that this solution is not relevant to all the contradictions or all the inconsistencies that can occur between different contractual documents including the hierarchy or different terms and scope have not been properly defined.

For the period prior to the signing of the contract, increasing exchanges, in particular of the mails, has the effect to almost imperceptibly drag in simple negotiations towards a draft contract which must be distinguished from the avant-contrat which already materialized points key of the existing agreement between the parties. The avant-contrat would be a kind of frame, the final contract may, however, depart, for example, with not one of the clauses proposed, as was the case in the case commented.

Once the contract is concluded, the difficulties of articulation or hierarchy of the various documents are date, source of legal uncertainty for the parties. There are however a number of safeguards, simple to implement.

To restrict the uncertainties associated with the specific content of the subscribed bonds, practitioners sometimes insert the clause from the "four corners", which specifically excludes the consideration of the prior documents; dependent, of course, for the parties to ensure that the whole of what they want to see be included in the agreement is well resumed in final contract.

This clause is usefully complemented by another providing that any rider will be the subject of a new written, signed by both parties. Thus can we mitigate the risk of contradictions, source of litigation when the common will of the parties, which had led to the development of the contract, is dissipated.